Anatomy of a Resurrected Unfunded Mandate
A few years ago, this column described the process of passage of the unfunded mandate requiring counties to pay attorneys for indigent parents in Child Protective Services cases in an article titled “Anatomy of an Unfunded Mandate.” The article described how floor amendments and conference committee reports can be used to insert unfunded mandates into legislation without notice or public hearings. Unfortunately, the recent special session provided another example of this negative, non-transparent legislative process.
In 2005, concerned over reports of uncollected fines and fees, the Texas Legislature adopted Article 103.0033, Code of Criminal Procedure (the Collection Improvement Program) to ensure that the state received its $83 from every offense. Applying to counties over 50,000 and cities over 100,000, this act requires implementation of a program for the collection of court costs, fees and fines under the direction of the Office of Court Administration (OCA). Unfortunately, the OCA program has proven to be inflexible and inefficient, stressing procedural compliance instead of results. While the largest county in the state (Harris County) has obtained a waiver from these bureaucratic requirements, all other counties over 50,000 continue to be forced to implement the OCA-mandated program.
Believing that a local option program would be more efficient and less bureaucratic, county representatives requested that the Legislature repeal the mandatory provisions. Although opposed by the staff at the OCA, these provisions were included in House Bill 2949 by Rep. Cook and Sen. Eltife. HB2949 was passed by the Legislature, signed by the governor, and was to become effective on Sept. 1, 2011. At the end of the regular session, it appeared that counties over 50,000 would be able to implement a collection program without bureaucratic oversight and potential penalties from the OCA. In a rare move, the Legislature had repealed an existing unfunded mandate.
However, since the Legislature failed to pass legislation necessary to implement the budget reductions, the governor immediately called a special legislative session. Senate Bill 1 by Sen. Duncan and Rep. Pitts was introduced to complete this process. Containing over 200 pages, SB1 included many provisions needed to balance the state budget. However, there was no mention of the Collection Improvement Plan (CIP) in the introduced version. The CIP was not discussed in either House or Senate committee hearings and was not included in any proposed floor amendments. There was no provision affecting the CIP statute in any version of the bill.
Since there were differences between the Senate version of SB1 and the House version, a conference committee was appointed to “adjust” these differences. A conference committee is composed of five senators and five representatives; appointed to the SB1 conference committee were Senators Duncan, Deuell, Hinojosa, Shapiro and Williams, and Representatives Pitts, Eissler, Geren, Otto and Villarreal. Normally, a conference committee can only resolve the differences between the two versions of the bill. A special resolution approved by the House and Senate is required to include any new matters.
As the special session neared its close, Sen. Duncan and Rep. Pitts filed a Conference Committee Report on SB1 and a resolution to allow additional matters. Rep. Villarreal declined to sign the conference committee report. Among the new matters was reinstatement of the mandated collections program in counties over 50,000. There were no hearings on this issue; no notice or contact was made with county representatives. Apparently the conference committee was influenced by the bureaucrats at OCA who wanted to maintain their funding and positions to supervise the county program. Rather than allowing a two-year trial of an optional program, the conferees decided to nullify the actions of the regular session and resurrect the mandated program. Faced with a “take it or return for another special session” situation, the Senate approved the conference committee report. After first rejecting the report, the House was coerced or cajoled by its leadership into approving it. The regular session repeal of the mandated program had itself been repealed in special session before it could become effective.
There are three obvious messages in this incident. First, although legally prohibited from lobbying, state bureaucrats exert considerable influence on legislation. Second, many legislators continue to believe that county officials cannot be trusted to act in the best interest of the citizens, the county, and the state unless supervised by a state agency. Third, unfunded mandates will continue to be adopted in an undercover, non-transparent process without notice or hearing until a constitutional amendment is adopted to end this abuse.
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